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However, despite assurances, noble Lords were still concerned. On Report, we therefore discussed an amendment tackling this issue and I undertook to consider the matter and come back to it today. The amendment put to noble Lords therefore provides the certainty that has been sought: that LINks, no matter what form they take, must have arrangements in place which guarantee transparent and vital elements of governance in some key areas. That has been achieved without forcing LINks to comply with a prescribed form of government.

The amendment places a duty on the Secretary of State to make regulations setting out the provisions that must be included in LINk arrangements relating to the governance, or means of operating, of any person carrying on LINks activities. The regulations will deal with how decisions are to be taken by a LINk—the arrangements which relate to how certain people involved in a LINk are, for example, to be authorised to enter and view premises of health and social care providers, such as how they conduct their investigations and assemble reports—the use of money by the LINk, and, importantly, what will happen if there is any contravention by a LINk of its arrangements with the local authority.

Those are the key elements one would seek to ensure certainty, a visible shape and form. I hope noble Lords will agree that the amendment secures the certainty of the key elements. It will certainly make clear to the local community, through more transparent and accountable arrangements, how—and, by implication, by whom—decisions will be taken. That could be by a board, a committee, a steering or project group; the conditions may differ, but there will be some form of arrangement to take decisions and agree priorities. It will also look at how the significant power of LINks to look into the direct provision of health and social care will be governed, for example, and how they spend their money.



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I hope that noble Lords think that we have the balance right on providing for some proper shape and function while simultaneously enabling the local community to determine for itself what it wants its LINk to look like and how it wants it to work. It is an excellent compromise. I beg to move.

Earl Howe: My Lords, once again, this is a most welcome amendment. I thank the Minister for agreeing to it, and for her comments about it. My only question is about the use of “may” in proposed new subsection (2), rather than “shall” or “must”. I hope that the Minster will not take this question as poor thanks for her troubles in any way: is it the Government’s intention to include in the regulations a provision in respect of each of the matters listed in proposed new subsection (2)(a) to (d)? I hope that the answer is yes, otherwise why include this list in the first place? It would be helpful to have that assurance on the record.

Baroness Andrews: My Lords, I give the noble Earl that assurance.

On Question, amendment agreed to.

7.15 pm

Baroness Andrews moved Amendment No. 61:

(a) define “the relevant time” for the purposes of subsection (2);(b) make provision about the ways in which the temporary duty may or may not be complied with;(c) impose on a services-provider duties as respects—(i) responding to requests for information made by a relevant person;(ii) dealing with reports or recommendations made by a relevant person;(d) make provision for the purpose of imposing on a services-provider a duty to allow individuals authorised by relevant persons to enter and view, and observe the carrying-on of activities on, premises owned or controlled by the services-provider;(e) make provision relating to the referral by a relevant person of matters relating to social care services to an overview and scrutiny committee of a local authority;(f) make provision requiring a relevant person to prepare prescribed reports and to send them to prescribed persons;(g) make provision about the publication of such reports.(a) provision corresponding to any provision that could be included in regulations under section 223(1) by virtue of section 223(2) or (3);(b) provision corresponding to section 223(4).

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(a) any provision of section 224(2) to (5);(b) any provision that could be included in regulations under section 224(6).(a) for the purposes of subsection (3)(c) and (e), a request, report, recommendation or referral is made by a “relevant person” if it is made by a person in carrying on section 220 activities in pursuance of temporary arrangements;(b) for the purposes of subsection (3)(d), an individual is authorised by a “relevant person” if the individual is authorised for the purposes of regulations under subsection (3)(d), in accordance with any applicable provision of those regulations, by a person carrying on section 220 activities in pursuance of temporary arrangements;(c) in subsection (3)(f) “relevant person” means—(i) a person who is or has been carrying on section 220 activities in pursuance of temporary arrangements; or(ii) a local authority which is or has been subject to the temporary duty.(a) a National Health Service trust;(b) an NHS foundation trust;(c) a Primary Care Trust; or(d) a local authority;

The noble Baroness said: My Lords, with this amendment, we come to an important part of our debates over the past weeks—indeed, it seems like months. I hope that noble Lords will feel that they have played a critical role in getting us to where we are now on the transitional arrangements.

Government Amendments Nos. 61 to 63 arise from these constructive discussions over the past few months, particularly on Report, about the need to address the possibility that there might be a gap in patient and public involvement activity should there be any delay between the abolition of patients’ forums and the establishment of LINks. The genuinely creative amendment brought forward on Report addressed some difficult issues that would have occurred had we postponed the introduction of LINks, when authorities doing really well and getting ahead of the game would have been held up. On the other hand, we would have found ourselves unable to make money available, that money being an enabler and facilitator for what needed to happen. I undertook to consider the amendment further and to come back today with an amendment to take account of noble Lords’ concerns and ideas.

Before addressing the substance of the amendment, I shall say a few contextual words. This issue clearly exercised patients’ forums as well and we wanted to

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provide confidence to those dedicated and active members of patients’ forums who we now sincerely hope will take their enthusiasm and expertise on to the next stage in LINks. I shall address a few concerns that have surfaced in letters to me. That is important, because this is my final opportunity to put the record straight on some of the concerns around transition.

First, on LINks not having a fixed membership, there are two issues to clarify, especially as patients’ forums have been exercised about this. The Bill does not specify who should be in a LINk, what kind of person should be involved or particular roles, because we wanted it to be locally owned. It is a radical experiment in some senses, because we are asking local networks to reach out into the furthest corners of their community and capture and amplify voices that are more often than not unheard. Flexibility is a virtue in that case, not an impediment.

My second point picks up on the amendment on governance that we have just discussed. Whatever form LINks take, they should have clear-cut arrangements for matters such as decision-making, who is an authorised representative, how funds are spent and so on. So although we do not specify details of membership, the local LINks themselves will have to have clear arrangements for determining who is an authorised representative for the purpose of reporting or taking part in visits. The balance is right in that regard.

Another major fear—a misconception that has persisted throughout this—is that LINks do not have any powers. In fact, the arrangements by which LINks can require information and responses to their reports, the means by which they can gain access to premises—the sort of thing you find in Clause 222—and the duties placed on commissioners and providers to respond to LINks are all provided for, just as they have been provided for patients’ forums. They effectively have powers in the shape of duties placed on others.

However, there are three important reasons why LINks can achieve even more than patients’ forums. First, in the forum legislation, the Secretary of State has the power to make regulations only in respect of forums and their ability to enter premises. Under Clause 223, the Secretary of State has a duty to make those regulations. Secondly, commissioners and providers would be required to respond to LINks—under Clause 222—and allow entry to both health and social care settings, not just health as in the case of forums in Clause 223. Thirdly, under the forum arrangements, overview and scrutiny committees do not have to respond to referrals made by forums, which they will now be required to do when receiving a referral from LINks—that is in Clause 224. These are important powers. Noble Lords may also know that the regulations that provide for the means by which organisations are obliged to respond to LINks are currently being consulted on by the Department of Health. If there are any ideas as to how the regulations could be clarified or strengthened, we would certainly like to hear them. There were questions as to whether the Bill reduces the ability to have influence over healthcare. This I cannot understand. Our view is that LINks may have far greater clout than the forums, because they have a much wider remit and capacity.



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Another concern is that LINks will be poorly funded. That again is not the case. As I understand it, the details of the three-year settlement are to be announced very shortly now that the Comprehensive Spending Review is settled. Making funds available directly to local authorities, which will then procure the hosts of LINks, missing out additional bureaucracy at the centre, means that more money will be available than many people expect.

We addressed conflicts of interest in the previous amendment. It is an important point, but it is dealt with all the time in many aspects of public life. Many organisations wear two hats.

There is a notion that LINks will be excluded from monitoring some health and social care services and all independent sector services. That is not the case. While there are some important restrictions on where a LINk can visit—for example, children’s social care facilities and people’s homes—there is no limit to the health and social care services that a LINk can monitor.

I hope that those answers to contextual questions add up to being able to say to patients’ forums and to people who are working in the field to establish LINks that we have done our best to ensure that what they need to make LINks a success and keep the commitment, energy and expertise available is in place. We have enabled that.

That is why this amendment on transition, which inserts a new clause, is so important and why I am so grateful to noble Lords. It may look a bit complicated, but its purpose is straightforward. The effect is that from 1 April, if a local authority has not established contractual arrangements through which LINk activities can be carried on, it will be under a duty to make sure that the activities are carried out by other means. The amendment sets out certain aspects which the Secretary of State will include in regulations, such as the period for which these transitional arrangements apply and the activities and the reporting of activities which are to be undertaken in this period.

I want to clarify one or two points on this. The question might arise of how we will know if the formal LINk arrangements have been reached and thus when the transitional period ends. We think that three clear stages will have to have been reached: first, when a host has been procured; secondly—here our amendment on governance is particularly relevant—when the LINk governance arrangements are in place; and, thirdly, when the LINk has begun to meet to start carrying on its activities. We shall make arrangements with local authorities to assess at which point each stage has been reached in each local authority area. We were tempted to put the period for the transitional duty in the Bill, but after careful thought we felt that regulations were more appropriate, as they would allow us to extend the period in the unlikely eventuality that that is needed. However, we do not believe that it will be necessary.

One of the main benefits of the transitional LINk arrangements is that local authorities will be able to receive their full allocation of funds from the outset. One of our concerns was that if we had retained the old system in parallel it would have eaten into the

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funds that we want to give local authorities to get LINks into action and which will be the engine that will drive these changes faster.

I shall say a little more about how we envisage the arrangements being carried on during the transitional phase. We will make further provision in regulations, which we will discuss with other stakeholders, about the ways in which the temporary duty may or may not be complied with—for example, because a local authority could not undertake the activities. We will expand in guidance on possible arrangements. We are clear about allowing people currently involved in patients’ forums to have an opportunity to apply their experiences and local knowledge. We shall make it clear to local authorities that in making their transitional arrangements they should invite members of the local population who have experience of monitoring local health and social services and representing local people’s views to be involved with the transition from patients’ forums to LINks activities. Local authorities will need to ensure not only that those people are available to undertake the LINk activities, but also that the group has the staff support and funding necessary to be effective. Of course, funding covers expenses only.

The regulations will also provide that all the same principles apply in the transitional phase as in the formal phase. For example, during the transitional arrangements, the temporary LINk will be able to make referrals to the overview and scrutiny committee and service providers will have the same duties to whoever is carrying out LINks activities. We are building genuine progression and consistency. That means that LINks, even prior to the formal arrangements, will be able to require information and responses to their reports and, perhaps most importantly, there will be certain obligations on providers of health and social care to allow people involved in the arrangements to have access to their premises.

In that context, I shall digress ever so slightly to thank the noble Baroness, Lady Neuberger, for the constructive part that she played in considering the relationship between LINks and the regulators. She very helpfully proposed that the regulators should involve authorised members of LINks in every inspection that they carry out. I set out in my letter to all Peers on 3 October 2007 and in debate that regulators are extremely supportive of the notion of involving lay people in their inspection activity; indeed, they already do so in a number of visits. However, lay assessors are not involved in every visit, nor would the regulatory bodies support the default involvement of LINks, as there always remains the possibility that it might not be appropriate. The costs of involving LINks in every case might also be disproportionate. The regulators, which have huge experience, have stood firm on those points.

We believe that the current position achieves the right balance between enabling adequate and appropriate involvement and allowing the regulators to go about their business in an efficient way. As the noble Baroness knows better than most, both the regulators are very supportive of LINks and are keen for the new health and social care regulator to continue to involve patients

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and the public as appropriate. I am sure that in the vast majority of cases informed, experienced and appropriately trained people participating in LINks can only enhance the process of assessment by the regulators. Our guidance will make it clear that our general expectation is that the regulators will join up with LINks to seek the involvement of lay assessors.

I hope that by clarifying our position on this and emphasising the transitional role for people who are already active we have strengthened the core of the LINks proposals. We are setting out a robust framework, which will mean that, even if a local authority has difficulty or delay in establishing formal LINks arrangements, the activities will still go ahead. This is crucial, because it is about maintaining pace, experience and enthusiasm. It is not just people in this House or in Parliament who think that the transition arrangements are a good idea; we have discussed them with the LGA, which is supportive. I also understand from the Commission for Patient and Public Involvement in Health that local authorities have suggested something along these lines as they prepare for LINks, so we are clearly all moving in the same direction.

It only remains for me to point out that the final two amendments are simply consequential to the insertion of the new clause on transitional arrangements and governance arrangements to make sure that Clause 226, which deals with the interpretation of this part of the Bill and supplementary matters, refers to the correct section numbers.

I am particularly pleased that we have been able to develop this notion. This is the last time that I shall speak on a health amendment, so I shall say how very grateful I am to the noble Earl, Lord Howe, the noble Baroness, Lady Neuberger, and other noble Lords who have spoken on the health part of the Bill, which was bound to be controversial, because it comes with some history. This House is particularly expert on it. The position that we have arrived at is an improvement and will make a big difference to the success of the new scheme. I am grateful for the help that we have received. I beg to move.

7.30 pm

Earl Howe: My Lords, I thank the Government and, in particular, the Minister for this welcome amendment, which looks set to resolve one of the most serious concerns that I and others had on this part of the Bill. I also thank her for her kind remarks, which, I am sure she will know, are reciprocated from this side of the House. There are several features of the amendment that I particularly welcome, not least the fact that we are promised regulations, not merely guidance, and that the length of the transitional period is left flexible, at least for the time being.

I have a number of questions. We all want to ensure that the transitional arrangements, whatever they are in individual cases around the country, are substantive and meaningful. Can the Minister give us a clearer idea of what mechanisms will be in place to ensure that local authorities do not engage merely in token forms of activity? We need to prevent that. For example, local authorities should need to be able to

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prove that during the transitional period patient and public involvement, including specific visits and monitoring of services, has taken place at no less a level of intensity than would be expected and to demonstrate this to the Department of Health. As an aspect of that, it might be appropriate for local authorities to publish the relevant details of PPI activities on their websites.

What more will local authorities be asked to do in order to demonstrate that they are not simply going through the motions? In support of that, how will the department encourage forum members to collaborate with local authorities during the transition? How will they ensure that they are properly supported and funded, and how will the work in progress of forums be taken forward under the provisions of Clause 227(3)?

Secondly, when are the draft regulations likely to be published? Doubtless the fact of these transitional arrangements will become known about quite soon among the generality of patients’ forum members, but until each forum knows precisely what the local authority in its area is intending to do as regards implementing the regulations, there may be a sense of unreality in the air, given that the only thing that forums know for sure is that they will cease to exist on 31 March. Early publication of the regulations is essential if we are not to see forums and their members dispersing in a manner that will make these arrangements harder for local authorities to implement.

Thirdly, given that there will almost certainly be insufficient time to consult on the regulations, could the Minister explain why the word “shall” or “must” does not appear in subsection (3) of the amendment instead of “may”? I am sure that there is a good answer to that, but is there any significance to it?


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